Citation Nr: 0411242
Decision Date: 04/29/04 Archive Date: 05/06/04
DOCKET NO. 03-12 878 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the
Commonwealth of Puerto Rico
THE ISSUE
1. Entitlement to an effective date prior to February 10, 1981,
for the grant of a 100 percent disability evaluation for
schizophrenia.
REPRESENTATION
Appellant represented by: Puerto Rico Public Advocate for
Veterans Affairs
ATTORNEY FOR THE BOARD
J. L. Tiedeman
INTRODUCTION
The veteran served on active duty from June 1971 to January 1973.
This matter is before the Board of Veterans' Appeals (Board) from
an April 2002 rating decision by the Department of Veterans'
Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico.
It appears that the veteran has intended to claim that he has
presented new and material evidence to reopen a claim for an
effective date prior to February 10, 1981, for the grant of a 100
percent disability evaluation for schizophrenia. That issue has
not been addressed directly by the RO, including notice of the
law and regulations governing the reopening of claims and an
adequate explanation of its decision. Here, it should be
considered whether the evidence submitted by the veteran is
sufficient to reopen a claim for an earlier effective date, as
distinct from the claim for CUE.
FINDING OF FACT
In April 2000, the Board held, in pertinent part, that a May 1987
Board decision, which denied an effective date prior to February
10, 1981, for the grant of a 100 percent disability evaluation for
schizophrenia, did not involve error.
CONCLUSION OF LAW
The Board's April 2000 decision finding no CUE in the May 1987
Board decision is res judicata on the claim of CUE in that Board
decision. 38 U.S.C.A. § 7111 (Supp. 2003); 38 C.F.R. § 20.1409(c)
(2003); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).
REASONS AND BASES FOR FINDINGS AND CONCLUSION
VCAA. Initially, the Board notes that, in November 2000, during
the pendency of this appeal, the Veterans Claims Assistance Act of
2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), was
signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107
(West 2002). To implement the provisions of the law, VA
promulgated regulations published at 66 Fed. Reg. 45,620 (Aug. 29,
2001) (codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)
(2003)). The VCAA and its implementing regulations essentially
eliminate the concept of the well-grounded claim. 38 U.S.C.A. §
5107(a); 38 C.F.R. § 3.102. They also include, upon the
submission of a substantially complete application for benefits,
an enhanced duty on the part of VA to notify a claimant of the
information and evidence needed to substantiate a claim, as well
as the duty to notify him what evidence will be obtained by whom.
38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they
define the obligation of VA with respect to its duty to assist a
claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. §
3.159(c).
In this case, the veteran has been notified of the reasons for the
denial of the claim, and has been afforded the opportunity to
present evidence and argument with respect to the claim.
Moreover, the Board finds that these actions are sufficient to
satisfy any duties to notify and assist owed the appellant. As
will be explained below, the claim on appeal lacks legal merit;
hence, the duties to notify and assist imposed by the VCAA are not
applicable in this appeal. See Mason v. Principi, 16 Vet. App.
129, 132 (2002).
Factual Background and Analysis. In May 1987, the Board denied an
effective date prior to February 10, 1981, for the grant of a 100
percent disability evaluation for schizophrenia. The veteran
subsequently filed a motion directly with the Board, under 38
U.S.C.A. § 7111, alleging clear and unmistakable error in the May
1987 Board decision. In April 2000, the Board concluded that the
May 21, 1987 Board decision was a tenable decision based on the
evidence then of record and considering the applicable law and
regulations in effect at the time of the decision. As such, the
decision did not contain clear and unmistakable error. See 38
U.S.C.A. §§ 5109A, 7111; 38 C.F.R. §§ 20.1400-20.1411.
In July 2000, the veteran again filed a claim for an effective
date prior to February 10, 1981, for the grant of a 100 percent
disability evaluation for schizophrenia. In support of this
claim, he submitted a June 2000 psychiatric report from J. E.
Villaneuva, M.D. In an April 2002 rating decision, the RO denied
the claim on the basis that the RO lacks authority to review or
change the Board's final decision on this matter. The Board
concurs with the RO's analysis.
Specifically, the United States Court of Appeals for Veterans
Claims (Court) has held that there is finality in CUE claim
litigation. A claimant may not secure a second adjudication on a
CUE claim that has been rejected previously in a final decision,
whether by an RO, the Board, or the Court. Russell v. Principi, 3
Vet. App. 310, 315 (1992). Such a final decision would be "res
judicata." See also Link v. West, 12 Vet. App. 39, 44-45 (1998);
Flash v. Brown, 8 Vet. App. 332, 338, 340-41 (1995).
In other words, the RO was correct that the veteran cannot now
relitigate his CUE claim based on the same allegations previously
made. Under these circumstances, there is no legal basis thru a
claim of CUE for assignment of an effective date earlier than
February 10, 1981 for the assignment of a 100 percent disability
evaluation for schizophrenia. Where, as here, the law and not the
evidence is dispositive, the appeal must be terminated or denied
as without legal merit. See Sabonis v. Brown, 6 Vet. App. 426,
430 (1994).
ORDER
Entitlement to an effective date prior to February 10, 1981, for
the grant of a 100 percent disability evaluation for schizophrenia
based on CUE is denied.
____________________________________________
M. W. GREENSTREET
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or
Board) is the final decision for all issues addressed in the
"Order" section of the decision. The Board may also choose to
remand an issue or issues to the local VA office for additional
development. If the Board did this in your case, then a "Remand"
section follows the "Order." However, you cannot appeal an issue
remanded to the local VA office because a remand is not a final
decision. The advice below on how to appeal a claim applies only
to issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not
need to do anything. We will return your file to your local VA
office to implement the BVA's decision. However, if you are not
satisfied with the Board's decision on any or all of the issues
allowed, denied, or dismissed, you have the following options,
which are listed in no particular order of importance:
* Appeal to the United States Court of Appeals for Veterans Claims
(Court)
* File with the Board a motion for reconsideration of this
decision
* File with the Board a motion to vacate this decision
* File with the Board a motion for revision of this decision based
on clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to
also:
* Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a
motion to vacate, or a motion for revision based on clear and
unmistakable error with the Board, or a claim to reopen at the
local VA office. None of these things is mutually exclusive - you
can do all five things at the same time if you wish. However, if
you file a Notice of Appeal with the Court and a motion with the
Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the
Court before you file a motion with the BVA, the BVA will not be
able to consider your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120
days from the date this decision was mailed to you (as shown on
the first page of this decision) to file a Notice of Appeal with
the United States Court of Appeals for Veterans Claims. If you
also want to file a motion for reconsideration or a motion to
vacate, you will still have time to appeal to the Court. As long
as you file your motion(s) with the Board within 120 days of the
date this decision was mailed to you, you will then have another
120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court.
You should know that even if you have a representative, as
discussed below, it is your responsibility to make sure that your
appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans
Claims? Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure
for filing a Notice of Appeal, the filing fee (or a motion to
waive the filing fee if payment would cause financial hardship),
and other matters covered by the Court's rules directly from the
Court. You can also get this information from the Court's web site
on the Internet at www.vetapp.uscourts.gov, and you can download
forms directly from that website. The Court's facsimile number is
(202) 501-5848.
To ensure full protection of your right of appeal to the Court,
you must file your Notice of Appeal with the Court, not with the
Board, or any other VA office.
How do I file a motion for reconsideration? You can file a motion
asking the BVA to reconsider any part of this decision by writing
a letter to the BVA stating why you believe that the BVA committed
an obvious error of fact or law in this decision, or stating that
new and material military service records have been discovered
that apply to your appeal. If the BVA has decided more than one
issue, be sure to tell us which issue(s) you want reconsidered.
Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA FORM
JUN 2003 (RS)
4597
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you
also plan to appeal this decision to the Court, you must file your
motion within 120 days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the
BVA to vacate any part of this decision by writing a letter to the
BVA stating why you believe you were denied due process of law
during your appeal. For example, you were denied your right to
representation through action or inaction by VA personnel, you
were not provided a Statement of the Case or Supplemental
Statement of the Case, or you did not get a personal hearing that
you requested. You can also file a motion to vacate any part of
this decision on the basis that the Board allowed benefits based
on false or fraudulent evidence. Send this motion to the address
above for the Director, Management and Administration, at the
Board. Remember, the Board places no time limit on filing a
motion to vacate, and you can do this at any time. However, if you
also plan to appeal this decision to the Court, you must file your
motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis
of clear and unmistakable error? You can file a motion asking that
the Board revise this decision if you believe that the decision is
based on "clear and unmistakable error" (CUE). Send this motion
to the address above for the Director, Management and
Administration, at the Board. You should be careful when preparing
such a motion because it must meet specific requirements, and the
Board will not review a final decision on this basis more than
once. You should carefully review the Board's Rules of Practice on
CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on
filing a CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to
reopen your claim by simply sending them a statement indicating
that you want to reopen your claim. However, to be successful in
reopening your claim, you must submit new and material evidence to
that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always
represent yourself in any claim before VA, including the BVA, but
you can also appoint someone to represent you. An accredited
representative of a recognized service organization may represent
you free of charge. VA approves these organizations to help
veterans, service members, and dependents prepare their claims and
present them to VA. An accredited representative works for the
service organization and knows how to prepare and present claims.
You can find a listing of these organizations on the Internet at:
www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is
not a lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than
before VA, then you can get information on how to do so by writing
directly to the Court. Upon request, the Court will provide you
with a state-by-state listing of persons admitted to practice
before the Court who have indicated their availability to
represent appellants. This information is also provided on the
Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for
a claim involving a home or small business VA loan under Chapter
37 of title 38, United States Code, attorneys or agents cannot
charge you a fee or accept payment for services they provide
before the date BVA makes a final decision on your appeal. If you
hire an attorney or accredited agent within 1 year of a final BVA
decision, then the attorney or agent is allowed to charge you a
fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the
Court. VA cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or
agent may charge you a reasonable fee for services involving a VA
home loan or small business loan. For more information, read
section 5904, title 38, United States Code.
In all cases, a copy of any fee agreement between you and an
attorney or accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion
asking the Board to do so. Send such a motion to the address above
for the Office of the Senior Deputy Vice Chairman at the Board.
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